Michele Simon has been writing and speaking about food politics and food industry marketing and lobbying tactics since 1996.

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Congress to Kids: Drop Dead

Posted on Saturday, December 17th, 2011 by Michele Simon

Last month, when Congress declared pizza a vegetable, it was hard to believe things could get much worse. But never underestimate politicians’ ability to put corporate interests ahead of children’s health. In the massive budget bill just passed, Congress stuck in language to require the Federal Trade Commission to conduct a cost/benefit analysis before finalizing a report that would provide the food industry with science-based nutrition guidelines for marketing to children. Experts from four federal agencies put heads together, and for the past two years have tried to complete its charge (which ironically, came from Congress in the first place) amidst powerful industry push-back.

Doing a cost-benefit analysis makes sense for regulations that require companies to actually do something. But there is no cost associated with something that is totally voluntary.

Where then, is this idea coming from? Specifically, before its report is made final, FTC must now attempt to comply with Executive Order 13563. What’s that? Bear with me, as some history is in order.

The order derives from a nasty right-wing deregulation policy that dates back (surprise!) to the Reagan administration. The Office of Information and Regulatory Affairs (OIRA) may sound innocuous, but over the past 30 years, it has become the best tool Corporate America has to kill proposed rules it doesn’t like. It acts as a gigantic hoop an agency must jump through to prove societal benefits outweigh economic costs, tacked on to an already stringent regulatory rule-making process. Here’s how Huffington Post Washington correspondent Dan Froomkin explains it:

OIRA analysts are supposed to rigorously examine proposed regulations and reject or revise them as necessary, based on interagency concerns and whether the costs of policy proposals outweigh their benefits.

This “regulatory bottleneck by design” has been a huge success for business interests over the years:

Since Ronald Reagan opened the OIRA office in 1981, Republicans have used it to particular advantage to pursue an anti-regulatory agenda, defanging environmental rules on things like water runoff and climate change — even blocking attempts to collect information that might lead to regulations.

Despite promises by President Obama to develop a new approach and some positive efforts early on to reverse Bush-era oppressive policies, this past January the White House, as Froomkin explains: “finally issued a limp executive order that basically reaffirmed the principles that had been guiding the office for years.” So much for change. The effect has been that all “significant executive-branch regulations” must get approval from OIRA before being proposed or finalized. That’s some bottleneck. (For more on deregulation and its impacts on health and safety under the Obama administration see OMB Watch.)

Which brings us back to junk food marketing to children. Remember, any final federal recommendations on nutrition guidelines would be voluntary. The entire process was never to result in regulations. This summer, FTC’s David Vladeck, director of the Bureau of Consumer Protection, wrote a frankly worded and humorous blog post in response to a massive industry freak-out led by the advertising lobby warning of “suppression of unprecedented amounts of advertising” to children. (Wasn’t that the idea?)

Vladeck tried to calm industry fears by explaining the FTC is just reporting to Congress, which “provides no basis for law enforcement action.” He repeated: “This is a report to Congress, not a rulemaking proceeding, so there’s no proposed government regulation.” And he added, just in case industry still didn’t get it: “A report is not a law, a regulation, or an order, and it can’t be enforced.” (my emphasis)

If you’re still with me, even if you didn’t attend law school, you may be wondering by now, how could Congress require that an executive order intended for proposed agency regulations apply to a report that “provides no basis for law enforcement action?”

Good question. I’ve been asking a few of my lawyer colleagues the same thing and they agree it makes no legal sense. Public health attorney Mark Gottlieb, executive director of the Public Health Advocacy Institute, which also fights the tobacco industry, told me he thinks the executive order only applies to formal rule-making and “does not seem to apply to promulgation of voluntary guidelines that go to great pains to avoid regulating industry.”

In other words, FTC is likely on solid legal ground to go ahead and release its final report to Congress without conducting any cost/benefit analysis. But I doubt we will ever see the final report. (We do have the proposed version, which can still be used to stick it to industry, as the Environmental Working Group recently did in its damning report on sugary cereals.)

Apparently, it wasn’t enough for the food, advertising, and media industries to spend $37 million lobbying this year to get its way. Nor has the multi-year delay of this entire process thanks to ongoing corporate bullying sufficed. How about making bogus “job loss” claims or (for the top Chutzpah Award) warning that we’d have to import more produce if kids actually ate their fruits and vegetables? Still not enough.

Industry keeps right on lobbying, it’s what they do best. And for Congress, it’s just business as usual. But the very real consequence of maintaining the status quo is that children will continue to be exploited for their emotional vulnerability, while getting lured into bad eating habits that can last a lifetime.

Cost/benefit analysis? Industry benefits, while children pay the cost.

31 Responses to “Congress to Kids: Drop Dead”

We need everyone’s help to make sure that the Administration does not use this as an excuse to abandon the guidelines. The industry lobbied hard and got the FTC stripped of its ability to regulate food marketing to kids in 1980. If it succeeds in keeping the government from issuing even voluntary recommendations, the government will never be able to go near food marketing to kids again. Let the Administration know you don’t want them to also cave to industry pressure: https://secure2.convio.net/cspi/site/Advocacy?cmd=display&page=UserAction&id=1259

Governments are just irreverent to health, and to most things. The only available solution is to take personal charge of those who we can, and the remainder will just have to suffer or follow. Do what we can, when we can, and ignore the rest.

[...] The following is from Margo Wootan, director of nutrition policy with Center for Science in the Public Interest, which has been leading the fight for decades to stop junk food marketing to children. She writes in response to my previous post. [...]

[...] food for kids — an obvious attempt to bury the guidelines for good. Over the weekend, Appetite for Profift posted an interesting and detailed analysis of this legislative tactic, going so far as to question its [...]

Here’s a thought: parents can stop buying the sugary cereals, pizzas, and junk food and learn to cook the basics with inexpensive fresh foods. Do we really need the government to tell us what to eat? No!

[...] I don’t mean to ignore the very real successes: increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement , just to name a few. But lately, at least when it comes to kids and junk food, we’ve been getting our butts kicked. [...]

[...] I don’t meant to omit a really genuine successes: increases in farmers markets, innovative and relocating programs such as Food Corps, and an increasingly different food probity movement, only to name a few. But lately, during slightest when it comes to kids and junk food, we’ve been removing a butts kicked. [...]

[...] I don’t mean to ignore the very real successes: increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement, just to name a few. But lately, at least when it comes to kids and junk food, we’ve been getting our butts kicked. [...]

[...] I don’t mean to ignore the very real successes: increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement, just to name a few. But lately, at least when it comes to kids and junk food, we’ve been getting our butts kicked. [...]

[...] I don’t mean to ignore the very real successes: increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement, just to name a few. But lately, at least when it comes to kids and junk food, we’ve been getting our butts kicked. [...]

[...] I don’t mean to ignore the very real successes: increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement, just to name a few. But lately, at least when it comes to kids and junk food, we’ve been getting our butts kicked. [...]

[...] I don’t mean to ignore the very real successes: increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement, just to name a few. But lately, at least when it comes to kids and junk food, we’ve been getting our butts kicked. [...]

[...] Michele Simon is a public health lawyer specializing in industry marketing and lobbying tactics. She is the author of Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back. This post first appeared on her website Dec. 17, 2011. [...]

[...] recommending better voluntary standards, as this blog post from FTC explained. But two years later, Congress brought the effort to a screeching halt, thanks to huge outcry from the food, advertising, and media [...]

[...] recommending better voluntary standards, as this blog post from FTC explained. But two years later, Congress brought the effort to a screeching halt, thanks to huge outcry from the food, advertising, and media [...]

[...] standards and suggested science-based, uniform, industry-wide guidelines instead. Two years later, Congress brought the effort to a screeching halt, thanks to a huge outcry from the food, advertising and media [...]

[...] standards and suggested science-based, uniform, industry-wide guidelines instead. Two years later, Congress brought the effort to a screeching halt, thanks to huge outcry from the food, advertising, and media [...]

[...] self-regulation has done more than government.” Of course it has, because that same industry lobbied like hell to stop government from doing its job in setting better guidelines. Throughout her presentation, which at times [...]

[...] self-regulation has done more than government.” Of course it has, because that same industry lobbied like hell to stop government from doing its job in setting better guidelines. Throughout her presentation, which at times [...]

[...] has done more than gov­ern­ment.” Of course it has, because that same indus­try lob­bied like hell to stop gov­ern­ment from doing its job in set­ting bet­ter guide­lines. Throughout her pre­sen­ta­tion, which at [...]

[...] come up mostly empty. A few years ago, the NRA helped kill an effort by four federal agencies to improve the industry’s notoriously lax voluntary guidelines on food marketing to children. The NRA also [...]

[...] with the power to do so seem to be having a hard time going against the big junk food businesses. Federal reform that was supposed to raise nutrition standards for how food is marketed to children fell apart in [...]